Gender Focus Panel: Bedford Decision on Prostitution

Earlier this week the Ontario Court of Appeal handed down a decision in the Bedford case, which deals with the laws surrounding sex work.

From the CBC:

The court released a decision Monday on an appeal of Superior Court Judge Susan G. Himel’s high-profile ruling that three provisions of the Criminal Code pertaining to prostitution should be struck down on the grounds that they are unconstitutional.

The Ontario appeal court agreed with two-thirds of Himel’s ruling, namely that the provisions prohibiting common bawdy-houses and living off the avails of prostitution, are both unconstitutional in their current form.

But the court disagreed that the communicating provision must be struck down, meaning that it “remains in full force” and the existing ban on soliciting will continue.

[…]

The court also said that the prohibition of living off the avails of prostitution – as spelled out in Section 212(1)(j) of the Criminal Code – should pertain only to those who do so “in circumstances of exploitation,” and will be amended to reflect that. The changes to the “living-off-the-avails” provision will not come into effect for 30 days.

After the jump we’ll go to responses from Gender Focus contributors, but first here were some responses from other media and feminist organizations (only excerpts: click on links to read their entire reactions):

“Once again the legal system is missing the mark on prostitution. Women will continue to go missing and be murdered, if there is no real work being done to aid women. Social programming and funding into women’s services are what is needed. Hiding women from plain sight to create a false sense of safety in community is not the answer. The women who are engaging in sex work are not the individuals creating the violence; it is the men who seek to exploit women’s bodies. Those men come from the very neighborhoods that these judges say they wish to create safety in; they plan on doing this by eliminating the undesirable social consequences of sex work. The undesirable consequences are that men are able to exploit marginalized, at-risk women in Canada” says Darla Goodwin, WAVAW Rape Crisis Centre Coordinator of Aboriginal Women’s Services.

“I am very concerned about the continued criminalization of women working on the street. These are the women who face the most charges, face the most violence and have the fewest options” says Pivot Board Member Kerry Porth. “But I am glad to see that the Court recognized that these laws were not put in place to prevent prostitution and that the current legislative scheme does not reflect the values of dignity and equality for sex workers.”

The other strange part about this conclusion is that the Court acknowledged that the evidence demonstrated that women prostituted on the street do not move indoors, even if it’s legal. The record from other countries that legalized brothels showed that there was no movement from the street to brothels following decriminalization. There are many reasons for this. An obvious one is that brothels won’t let women in who struggle with mental illness, addiction, or have other health problems. Another is that many women prefer prostituting on the street because they have more control than in a brothel where the manager negotiates with johns on their behalf.

Now here’s what Gender Focus contributors had to say:

Alicia:

This decision does little to ensure safety for women in sex work. It makes them no less vulnerable to violence and (as usual) does not hold buyers of sex accountable for anything. Simply taking sex work inside does not make it safe. Even with the ability to pay ‘staff’ women are still in extreme positions of vulnerability. This seems more a push to get prostitution out of sight and out of mind to ease to collective societal conscience then for the safety and health of the workers. All we are doing is giving those in positions of power ability to say, “Sorry you should have taken it inside” when street level sex workers are attacked by johns.

Jasmine:

I was rather disappointed by the recent Ontario Appeal Court ruling. While the law prohibiting the operation of a bawdy house was struck down, and the law against living off the avails of prostitution was amended to apply only in “circumstances of exploitation”, it is the law against communication that is perhaps the most detrimental to street workers – the only one of the three that was fully upheld. In terms of sex work, it is street workers who are at greatest risk for harm, and who are least protected; women and men who sell sex on the streets are harassed, prosecuted, and too frequently are victims of violence. There is a consistent devaluation of street workers in particular, who also tend to be the most vulnerable subset of sex workers. Rather than protecting the most vulnerable populations, this law increases the risks of victimization (through both physical and systemic violence).

Some have argued that sex work is inherently degrading and exploitative. I don’t believe this to be the case. I believe that people can choose to work in the sex trade from a place of personal agency. To suggest, as Justice Minister Rob Nicholson asserts the Prime Minister has, that “prostitution is bad for society and harmful to communities, women and vulnerable persons,” is an oversimplified and reductionist (not to mention inaccurate and not supported by evidence) perception of sex work. Stigma and prejudice continue to drive our judicial system, failing those who are most in need of legal protection.

Taylor:

I have never been a John, have never known a sex worker to my knowledge, and I don’t know what it is to live the experience of someone who is harmed or aided by this industry, so if I offer too strong an opinion now I’ll do a disservice to myself. Were relief shelters asked to weigh in on this at any point? I don’t know but I really hope so because the people at VRR for example have wonderful insight. My last partner’s mother worked on the Missing Women’s Inquiry, and her description of the legal process, particularly of sex workers’ voices not being heard, was terrifying, so I do worry that these legal desicions also lacked grounding in having received the experience of women affected by prostitution.

The “prostitution has and always will be around so let’s work within the system” argument rings false to me. But so does any argument that takes away a person’s choice in terms of how they express their sexuality or earn a living, and selling being legal but buying illegal seems incoherent to me. Being a John doesn’t necessarily make you a bad or even sexually violent person and I think many sex workers would resent being called confused victims powerless to make a choice. I’m very reticent to be a voice for someone else’s oppression or to even call another human’s experience necessarily oppressive because my reaction to this is mine and only mine and I know little. The most grounded response I can give is that if I were a John I’d feel I was making a poor choice. I’d be seeking a kind of sex that didn’t honour myself or the other person. I’d be engaging in an act that would reflect and shape myself and what women and sex represent to me. I can’t reconcile how buying the use of a person’s body would be ethical, nor can I reconcile how it would be fulfilling sex, nor can I reconcile how it’s ethical (or even helpful) to legally force people not to be johns or prostitutes. I’m aware of some stats on the side of abolitionists, for example that over 90% of female prostitutes display the diagnostic criteria for PSTD. That is alarming and very sad to me. Prostitution can’t be good in light of that. Yet, I still feel weird about criminalizing any act of sex that is consented to, money exchanged or no.

I’ve had a long off and on relationship with pornography, and know that for ME, my biggest enabler is secrecy. I’ve been most aided and empowered not to seek pornography when I’ve felt I can talk about it honestly and receive feedback without judgement. I have big misgivings about prostitution, but Johns should decide not to be Johns because they don’t want to be Johns, and our cult of secrecy around sex is air to the sex industry. I think the sex industry sucks, but I think it sucks for deeper reasons of self-hate, blame, misogyny, power, and secrecy than the act of buying or selling sex unto itself.

I have no yes or no here, and I’m excited to hear what others have to say. I would love for prostitution not to exist. In a more loving world it wouldn’t (or shit, maybe it would in a whole other form). The mainstream uses language that distracts us from the industry’s impact (even the words “sex worker” are an example). But I fear its being illegal would feed the secrecy that enables it to thrive.

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